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What sort of standards should be applied when people claim their ability to freely exercise their religious beliefs has been denied? The Supreme Court is altering our view of that question.

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Opinion: What religious freedoms do you actually have?

The Supreme Court’s understanding of religious freedom is changing under our feet

SHARE Opinion: What religious freedoms do you actually have?
SHARE Opinion: What religious freedoms do you actually have?

Jonas Yoder had a problem. A member of the Old Order Amish religion, Yoder believed that his children should not attend public school past the eighth grade. Doing so would subject his children to “worldly” influences and perhaps put their eternal salvation at risk. But the state of Wisconsin, where he lived, required his children to attend school until 10th grade. If he didn’t comply with the law, Yoder would face fines. 

Yoder took his case to court, claiming that his right to the free exercise of religion under the First Amendment had been denied. In a 1972 ruling, Yoder won — but should he have? What sort of standards should be applied when people claim their ability to freely exercise their religious beliefs has been denied? 

This is no abstract question, and it’s one that demands attention as recent cases at the U.S. Supreme Court have addressed these issues in new and surprising ways. The Supreme Court’s understanding of religious freedom is changing under our feet. Yet, the justices can only do so much to protect religious liberty; the real work of building a society that protects this vital First Amendment right belongs to each of us. 

To illustrate, consider the two major legal approaches, or “tests,” to religious exercise cases that have prevailed across the past 60 years.

The first — known as the “Sherbert test” — asserts the government must have a “compelling state interest” to restrict religious exercise and must pursue that interest by the “least restrictive means.”

The second — known as the “Smith test” — sets a much lower bar for religious liberty: It asks whether the government’s action was “neutral” and “generally applicable” — that is, the government must not target religious beliefs for special disfavored treatment, and any rules and regulations that apply to religious belief must apply to other areas of life as well.

The choice of which approach to use will often determine how a case turns out. In Yoder’s case, the court applied the Sherbert test, virtually guaranteeing that he would win. All parties conceded that Yoder’s beliefs were sincere and that they were burdened by the law. The court concluded that Wisconsin did not have a “compelling state interest” in keeping Yoder’s children in school for two more years, and thus Yoder won. 

But things may not have worked out that way if the Smith test had been applied. Smith examines if a law is neutral and generally applicable, and both criteria seem to be satisfied by the Wisconsin compulsory education law — it doesn’t seem motivated by intolerance toward the Amish, and it applies to religious and nonreligious children alike. There is no presumption in favor of religious accommodation. It looks like Yoder would have to either send his children to school or face the consequences of disobeying the law. 

Of course, Smith would not be decided until many years after Yoder’s case, but it is important to see how the different standards would have influenced the outcome. The Smith test has been the prevailing standard since 1990, and has inspired both critics and supporters. But now it seems to be undergoing a strange kind of metamorphosis — recent decisions have given it a new life and meaning, bringing it (surprisingly) closer to the Sherbert test. How could this happen? 

Consider two important free exercise cases decided in the past few years: Masterpiece Cakeshop v. CCRC and Fulton v. Philadelphia. Decided in 2018 and 2021, respectively, these decisions were anticipated to be blockbuster cases in religious liberty law, either primed to embrace or refute the standard in Smith. Yet, the court found novel ways of applying the test — Smith was reaffirmed, but in a much more demanding form. 

In Masterpiece, the court decided in favor of a Colorado baker who refused on religious grounds to create a custom-made cake to celebrate a gay wedding. The majority opinion explained that “(Jack) Phillips’ religious objection was not considered with the neutrality required by the Free Exercise Clause,” due to several derogatory remarks made by members of the Colorado Civil Rights Commission about Phillips’ beliefs. Failure to treat Phillips’ beliefs with neutrality yielded a 7-2 judgement in his favor. 

Similarly, the Fulton case again found a way to use Smith to protect religious liberty rather than attack it. Due to religious convictions, the Catholic Social Services of Philadelphia would not conduct home studies for same-sex couples hoping to foster, but would instead refer them to another agency in the city. Philadelphia objected on the grounds that CSS violated its contract based on principles of nondiscrimination.

To the surprise of many, the court ruled unanimously in favor of CSS. Equally surprising was the court’s explanation that the contract’s nondiscrimination language allowed for exceptions to be made and thus could not be considered generally applicable. Smith carried the day, but it is a Smith that few people would have recognized even a few years ago. 

Cases like these demonstrate that the application of existing free exercise standards is not particularly clear, making the outcomes of future religious liberty cases difficult to predict. Smith can apparently be used to accommodate religious liberty or not, depending on how it is applied. New York Times columnist Linda Greenhouse goes as far as to say “there is no longer a reason for the court to waste time and energy fighting over Employment Division v. Smith” because recent cases make “Smith’s barrier against religious exemptions so easily evaded as to be irrelevant.” 

But perhaps we’re asking too much of legal standards to begin with. Courts do play an important role in defending religious liberty, and we should seek to find and support the best standards that embody the Constitution’s commitment to religious freedom. However, many disputes can be resolved before they get to court. As Dallin H. Oaks, first counselor in the First Presidency of The Church of Jesus Christ of Latter-day Saints and former Utah Supreme Court jurist, has stated, courts should be viewed as a “final fallback” rather than our “first recourse” for defending religious freedom.

The defending of religious freedom that affects most of us will be localized and practical rather than nationalized and abstract. When judges litigate hard cases that do not have a clear “right” answer, the decisions often lead to errors in outcomes, placing strain on judicial credibility and sometimes breeding even more uncertainty for future decisions. 

In a paradoxical way, perhaps the best way to vindicate one’s free exercise rights is to focus instead on free exercise responsibilities. For many faiths, this means looking for ways to serve, encouraging honesty and integrity, and seeking after truth in whatever forms it is available. Fulfilling these responsibilities gives substance to religious freedom, which naturally leads policymakers to want to preserve religious rights. 

Anna Bryner is a recent graduate of Brigham Young University, where she studied journalism and political science. Brady Earley is a recent graduate of BYU, where he studied economics and American studies. Daniel Frost is an assistant teaching professor in the School of Family Life at BYU.